Border Patrol checkpoints stir public backlash

Jun. 7, 2014
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In February, local residents and activists like Patty Miller began to monitor the Border Patrol checkpoint on the road from Arivaca, Ariz., to Interstate 19, four hours a day. / Michael Chow, The Arizona Republic

by Bob Ortega, The Arizona Republic

by Bob Ortega, The Arizona Republic

ARIVACA, Ariz. -- For the past seven years, anyone driving out of this small town on either of the main roads north has had to pass through a "temporary" Border Patrol checkpoint. Agents also rove along the local roads, frequently stopping vehicles.

Over those years, many residents say they've gotten little response from the Border Patrol to complaints about harassment and abusive behavior by agents, about traffic delays and inconvenience. They've gotten no answer when they've asked how many undocumented migrants or loads of drugs either of the checkpoints flanking their town actually intercept.

So, in February, local residents and activists began to monitor the Border Patrol checkpoint on the road from Arivaca to Interstate 19, four hours a day, three to five days a week. And to date, they say, they have yet to see a migrant apprehended or person arrested for drugs or anything else.

"Every time we pass through, we have to be scrutinized and asked questions that don't relate to citizenship," Peter Ragan said one recent sunny morning.

Ragan, wearing a bright yellow safety vest, watched from the gravel shoulder as an agent questioned a man driving a white Ford pickup. "The justification is supposed to be immigration, but really, it's focused on general law enforcement: 'Where are you going? What are you doing? Is this your vehicle?'"

From Maine to California, the Border Patrol operates scores of similar checkpoints on roads and highways up to 100 miles from the border. Customs and Border Protection, or CBP, acknowledges 35 "permanent" checkpoints, mostly on interstates and larger highways, but declines to specify where or how many ostensibly temporary or "tactical" checkpoints the agency operates; agency documents reviewed by The Arizona Republic indicate the capacity to operate as many as 200 checkpoints.

The U.S. Supreme Court upheld the Border Patrol's use of checkpoints away from the border to verify residency status in a 1976 ruling, U.S. vs. Martinez-Fuerte. In that case, affirming the conviction of a man for transporting two undocumented immigrants, the court said that questions at immigration checkpoints must be brief, minimally intrusive and immigration-focused, and that any "further detention â?¦ must be based on consent or probable cause."

But as the number of interior Border Patrol checkpoints has grown since 9/11, so have complaints that agents routinely expand the scope of their questions and searches far beyond what that ruling envisioned, that interior checkpoints and patrols interfere with constitutionally protected rights and that the checkpoints effectively militarize huge swaths of U.S. territory.

In the case of the Arivaca checkpoint, monitors maintain that the Border Patrol operates it primarily to force migrants to hike farther through the desert. As another monitor, Bobbie Chitwood, put it, "They know they're pushing people further out."

ACLU complaint

Border Patrol officials in the Tucson Sector, which includes the Arivaca checkpoints, declined to say how many apprehensions or arrests, if any, they've made at the Arivaca checkpoints over the past seven years. Sector officials said that at all their checkpoints combined, they've made 6,372 apprehensions and seized 135,000 pounds of narcotics over the past three fiscal years. Wednesday, they seized 2 tons of marijuana at a checkpoint near Whetstone. Last December, about one third of Arivaca's residents signed a petition asking for the Arivaca Road checkpoint to be removed.

In a Jan. 17 letter, Chief Patrol Agent Manuel Padilla responded: "We will not close the checkpoint," which he called an essential tool for enforcing immigration law.

Padilla did not address specific complaints of harassment or mistreatment that residents had raised in their petition, but he invited them to bring future incidents or issues to his attention.

In January, the American Civil Liberties Union put together a complaint detailing 12 incidents in which 15 U.S. citizens in southern Arizona said that they were subjected to excessive force, unconstitutional searches or other misconduct at interior checkpoints. These include cases of agents pointing guns at people, threatening and cursing at them, refusing to identify themselves by name and trying to take cellphones.

In seven of the cases, citizens said Border Patrol agents never asked them about their citizenship status. The complaint, which the ACLU filed with the Department of Homeland Security's office of Civil Rights and Civil Liberties, noted that the Supreme Court specified, in a 2000 ruling, that using checkpoints for general law enforcement violates the Fourth Amendment's restrictions against "unreasonable search and seizure."

DHS said it would investigate, but has not yet replied further, said the attorney who filed the complaint, James Duff Lyall, in Tucson.

The restrictions in the Martinez-Fuerte ruling don't mean that agents have to turn a blind eye to obvious evidence of drugs or crime, Lyall said. "But if you have cases where people are not even being asked about residency status, it raises serious questions about the legitimacy of these checkpoints," he said.

Checkpoint videos

The Supreme Court's Martinez-Fuerte ruling didn't address the use of checkpoints for drug interdiction, but the Border Patrol considers intercepting drugs a key part of its mission. Drug-sniffing dogs are a standard feature at checkpoints.

This past Sunday, for example, an agent's dog at a checkpoint on State Route 80, near Tombstone, alerted the patrol to what turned out to be 40 pounds of cocaine hidden inside the front bumper of a 1997 Chevrolet Malibu. Agents arrested four U.S. citizens, turning them over to state troopers.

In New Mexico, the Albuquerque Journal reported last month that residents legally approved to use medical marijuana are afraid to travel in the southern part of the state because Border Patrol agents detain them at checkpoints and seize their prescribed marijuana.

Protests against the Border Patrol checkpoints have taken many forms. Across the country, so many people have posted clips of themselves refusing to answer questions at checkpoints that a YouTube search for "Border Patrol checkpoint refusal" videos pulls up more than 14,000.

These include incidents of agents trying to seize cameras or cellphones at checkpoints, and telling people they don't have the right to film them.

Terry Bressi wants to make sure the Border Patrol's actions don't go unnoticed. The Tucson resident runs a website, checkpointusa.org, devoted to, as he puts it, "confronting roadblocks to freedom." Bressi is an engineer whose work frequently takes him past a Border Patrol checkpoint on State Route 86, on the Tohono O'odham reservation. He was first stopped by police and Border Patrol agents there in 2002.

"I asked a couple of questions, and before I knew it, I was dragged out of my vehicle, handcuffed and charged with two criminal misdemeanors," he said.

That incident launched a decadelong legal fight. It was the first of five occasions in which Bressi would be cited at the behest of Border Patrol agents. He said the agents would "work with the deputy to find some ridiculous excuse to cite me for supposed trivial violations of state traffic laws."

Each time, judges tossed out the charges, and in 2012, Bressi won $216,000 to settle his civil suit against the tribal police over the citations. Now, to protect himself, he says, he videotapes every checkpoint encounter.

"You don't usually get very far, if it's just your word against the police in court," Bressi said.

Congressman's efforts

The controversy over checkpoints isn't new.

For many years, efforts by the Border Patrol to create a permanent checkpoint on I-19, the highway from Nogales to Tucson, were foiled by then-Rep. Jim Kolbe, R-Ariz. Kolbe used his position on the House Appropriations Committee to block funding for such a checkpoint; and he regularly inserted language requiring the Border Patrol to move any temporary checkpoint every week or two.

When Kolbe retired in 2007, the Border Patrol created a de-facto permanent checkpoint that quickly drew fire from Tubac and Green Valley residents, who complained of the same issues now being raised by Arivaca residents.

In Arivaca, when six people showed up on Feb. 26 for their first day of monitoring the Border Patrol checkpoint, accompanied by about two-dozen protesters, Border Patrol agents responded aggressively, monitors said.

"They kept pushing us back," said Jack Driscoll, a retired highway-construction engineer and volunteer monitor, speaking at the checkpoint one morning in late April.

He said that first day, the agents called the Pima County Sheriff's Office. "The sheriff's department told us where we could stand, which was a lot closer than where we are now. After they left, the Border Patrol moved us back. They were six abreast, elbow to elbow. They told us if we didn't move, they'd arrest us all. So we moved."

In response to a complaint by the ACLU's Lyall, the harassment stopped, monitors said.

Padilla, the chief patrol agent, didn't address the allegations in his response to Lyall, other than to say monitoring "may be protected by the First Amendment."

In a statement to The Republic, the Border Patrol did not address the allegations of harassment, but said that "observing Border Patrol operations is permissible as long as it doesn't interfere with operations."